Royal Borough of Kensington and Chelsea v Bafna-Louis, 2023 WL 2387385 (S.D.N.Y., 2023) -[United Kingdom][Habitual Residence] [Petition granted as to younger child] [ Mature Child Exception]

 

In Royal Borough of Kensington and Chelsea v Bafna-Louis, 2023 WL 2387385 (S.D.N.Y., 2023) the Royal Borough of Kensington and Chelsea (the “RBKC”) brought a petition for the return of CBL and Baby L to the United Kingdom pursuant to the Hague Convention. The Court found that the RBKC had proven its entitlement to relief. The Court found based on an in-camera interview of the thirteen-year-old CBL that it was appropriate to defer to CBL’s preference not to be ordered to return to the United Kingdom.

 

The Court held a hearing on January 23, 24, and 25, 2023. Respondent Tara Bafna-Louis, the mother of CBL and Baby L was a citizen of the United States and Hungary who has long resided in London. She currently resided in Manhattan with CBL, age thirteen, and Baby L, age 16 months. After graduating from Georgetown University, she attended graduate school at Oxford University in England and remained in England for much of her adult life. Bafna-Louis gave birth to CBL in France in September 2009. CBL’s biological father maintained no contact with CBL and communicated that he wished to have no role in CBL’s upbringing. CBL is a citizen of the United States and Hungary. When CBL was a young child, he and Bafna-Louis relocated to New York City from approximately 2010 to 2013 or 2014, at which point they returned to London. CBL attended a private school in London that was an approximately eight-minute walk from the family home in the Belgravia neighborhood. Bafna-Louis gave birth to Baby L in London in October 2021. Baby L is a citizen of the United States and the United Kingdom. Individual-1 is the biological father of Baby L, his paternity had been disputed, Individual-1’s parental rights were the subject of ongoing court proceedings in London.

 

Shortly after Baby L’s birth, Bafna-Louis and the two boys came to the attention of social-services authorities in the City of Westminster. On the night of November 15, 2021, Bafna-Louis called law enforcement to report that Individual-2 was outside of her home. When police arrived, they observed that Bafna-Louis spoke with slurred speech and appeared disoriented and that she was holding Baby L in a precarious position. Bafna-Louis then dropped Baby L onto the wooden floor. Bafna-Louis and Baby L were taken by ambulance to Chelsea in Westminster Hospital and released. The RBKC is a local government authority within Greater London. At the time of CBL’s removal, the RBKC was both responsible for the administration of the child-protection plan and was the applicant in CBL’s Wardship Proceeding before the High Court of England and Wales. Under United Kingdom law, the RBKC also is delegated the authority to enforce the rights of the High Court relating to CBL and Baby L.

 

          The Court concluded that RBKC had standing under Article 8 of the Convention, which states in part that “[a]ny ... institution or other body claiming that a child has been removed or retained in breach of custody rights may apply ... to the Central Authority of any other Contracting State for assistance in securing the return of the child.” See also Article 3(a). In implementing the Convention, ICARA sets forth conditions for “[a]ny person” to file a petition for relief, and defines person to include “any ... institution, or other legal entity or body ....” 22 U.S.C. §§ 9003(b), 9002(5).

 

          The City of Westminster is a department of local government within Greater London. On or about January 6, 2022, a social work team for the City of Westminster held a child protection conference that led to the implementation of a Child Protection Plan for CBL and Baby L. At the time, Baby L was approximately two months old and CBL was twelve years old. The Westminster authorities were primarily worried about Bafna-Louis’s use of alcohol and how it might affect the two boys. The City of Westminster adopted a plan whereby a social worker would make a home visit at least every ten days to “see and speak to the child.” The City of Westminster would also provide alcohol-treatment services to Bafna-Louis. In April 2022, Bafna-Louis and CBL relocated within London, to the Bina Gardens neighborhood under the jurisdiction of the RBKC.

  

Bafna-Louis met Individual-1 in or around 2019. In a submission to the Central Family Court in London Bafna-Louis characterized Individual-1 as a “sperm donor” in her efforts to conceive a second child. Individual-1 acted as a cat sitter and kept a spare key to the family home. Beginning in late 2020, Individual-1’s behavior toward Bafna-Louis turned hostile. Bafna-Louis described occasions where Individual-1 menaced and attacked her. He once held his thumbs to her collarbone and restrained her movement for about 30 seconds. In another incident, he arrived unannounced while intoxicated and entered the home using his spare key. He ignored Bafna-Louis’s instructions to leave, then pushed a broken metal can into her forehead, leaving a bloody cut. Bafna-Louis testified that Individual-1 raped her on or about February 14, 2021. She testified that Individual-1 arrived to her home and that she felt unwell after drinking a juice that he served her. She had no memory of what then transpired, but found indicia of “[n]on-consensual sex that could have led to pregnancy.” Bafna-Louis did not report the rape to the police but instead informed the Westminster local authority. She also stated, “I had reported to the police not specifics, like without a name.” On or about December 15, 2021, Individual-1 commenced paternity proceedings against Bafna-Louis in the Family Court, asserting that he was the biological father of Baby L. Family Court granted a prohibited-steps order after Bafna-Louis had the opportunity to be heard. In an Order of March 10, 2022, the Family Court  stated, “The mother must not remove the child from the jurisdiction of England and Wales until further order.”  In boldfaced, underlined text, that Order also stated, “To Tara Bafna Louis: If you the within-named respondent do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized.” It separately stated, in boldfaced text, “It may be a criminal offence under the Child Abduction Act of 1984 to remove the child from the United Kingdom without leave of the court.”

 

Bafna-Louis also testified that Individual-2 raped her, and described Individual-2’s prolonged harassment campaign against her and CBL after she reported to local police that she was raped by Individual-2. Bafna-Louis asserted that she was “not in an intimate relationship” with Individual-2. She testified that they interacted in person for a total of five or six times, including a February 2021 visit to her home, when he cooked a meal and played chess. Bafna-Louis testified that Individual-2 raped her on April 1, 2021. She stated that she drank two or three glasses of white wine, and then blacked out as a result of her difficulty metabolizing alcohol. As described by Bafna-Louis, Individual-2’s subsequent messages identified their encounter as rape: “I can’t really describe how it came about. In fact, I didn’t even know that it had occurred until [Individual-2] sent pages and pages of WhatsApp messages describing exactly what had happened on that evening.” Bafna-Louis testified that Individual-2 became belligerent after Bafna-Louis reported the alleged rape to law enforcement. Individual-2 repeatedly called and rang the doorbell to the Bafna-Louis residence. He collected her mail and redelivered it with handwriting on the envelopes. He contacted her friends, family members, and CBL’s school administrators to call her “a slut” and threaten to “destroy our lives.” After Bafna-Louis moved to the United States, Individual-2 contacted her close friends, her mother, the doorman of her building and her gym. She stated that she contacted London police about Individual-2 “multiple times” but that “[t]hey really didn’t do very much” following his initial arrest.

 

          Individual-3 was a London-based barrister who, in late 2021 and early 2022, was briefly engaged to marry Bafna-Louis. For a period of time, Individual-3 was listed on Baby L’s birth certificate as the child’s biological father, and Bafna-Louis adopted Individual-3’s last name after the two became engaged in late 2021. When asked whether she believed Individual-3 was Baby L’s father at that time, Bafna-Louis answered, “There was a chance [Individual-3] was the father at that time” but that she “was unsure.” Bafna-Louis testified that she participated in the decision to list Individual-3 on Baby L’s birth certificate. On March 18, 2022, when Individual-3 was still identified as the father on Baby L’s birth certificate, Individual-3 physically removed Baby L from London to the United States and delivered the infant to Bafna-Louis’s mother in New York City.Individual-3 has acted as Bafna-Louis’s barrister in Family Court proceedings. Individual-3 was included in the RBKC’s safety plan for CBL in April and May 2022, and he had supervisory and caretaking authority over CBL in Bafna-Louis’s absence. Bafna-Louis remained on good terms with Individual-3, who submitted an affidavit on United Kingdom immigration law on her behalf in this proceeding. At the hearing, Bafna-Louis initially denied that she asked or instructed Individual-3 to remove Baby L to New York. Bafna-Louis’s testimony about the removal of Baby L was evasive. Her responses first suggested that Individual-3 removed Baby L independently, and then, in follow-up questions, she acknowledged her participation in the scheme:

 

The United Kingdom’s Child Abduction Act 1984 states that “a person connected with a child under the age of sixteen commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent,” and that a “taking” or “sending” occurs where a person “causes or induces the child to accompany him or any other person ....” The English High Court has stated that Baby L “was wrongfully removed by [Individual-3] (acting as an agent of the Mother) out of the jurisdiction of England and Wales in breach of the rights of custody of the Court ....”

 

The Court independently found that it is more likely than not that Bafna-Louis, acting in concert with Individual-3, knowingly and willfully caused Baby L to be removed from the United Kingdom to the United States. Shortly after Individual-3, acting in concert with Bafna-Louis, removed Baby L from the United Kingdom, the Westminster City Council brought proceedings against Bafna-Louis and Individual-3 in the High Court of Justice, Family Division. The proceeding resulted in an Order from the High Court that prohibited Bafna-Louis or Individual-3 from removing CBL from England and Wales and ordered them to arrange Baby L’s return to the jurisdiction.

 

Bafna-Louis removed CBL from England and Wales to New York City on or about May 16, 2022. Since that time, Bafna-Louis, CBL, and Baby L resided with Christina Louis on the Upper East Side of Manhattan.

 

Meanwhile, proceedings relating to CBL and Baby L continued in the High Court. In the Wardship Proceedings to which the RBKC is a party, the High Court issued multiple orders directing Bafna-Louis and/or Individual-3 to return the children to the jurisdiction, including orders of June 10, July 8, July 26, August 8, November 15 and December 13, 2022. In Orders of November 15 and December 7, 2022, the High Court directed the Home Department of the United Kingdom to grant visas to Bafna-Louis, CBL, and Baby L.

 

The High Court also declared that Individual-1 had “parental responsibility” over Baby L. In an oral ruling of August 23, 2022,  Mr. Justice Keehan of the High Court summarized a sealed order that found on the basis of DNA evidence that Individual-1 is the biological father of Baby L. The order did not appear to grant Individual-1 unfettered rights as to Baby L.

 

In a filing to the High Court dated November 25, 2022, Shanks described the RBKC’s proposed plan in the event that Bafna-Louis and the children return to England and Wales. The RBKC will pay up to £3,000 per month on housing for the family on a property chosen by Bafna-Louis.  It does not seek to separate the children from their mother. A support worker would provide 24/7 supervision and support upon their initial return. A team would assess Bafna-Louis’s substance use, mental health, and parenting capacity. The RBKC would facilitate CBL’s schooling, either remotely, through a state-funded school, or in a private school paid by Bafna-Louis. The RBKC would not oppose the participation of the maternal grandmother, Christina Louis, in the program. The assessment would last for approximately 12 weeks.

 

The District Court observed that the Hague Convention does not define the term ‘habitual residence.’ ” Monasky, 140 S. Ct. at 726. “ ‘Under the text of Article 3(a) of the Convention, the habitual-residence analysis looks to the state “in which the child was habitually resident immediately before the removal ....” (emphasis added); accord Monasky, 140 S. Ct. at 726 (“The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.”) The Court found that the greater weight of the evidence, supported the conclusion that the United Kingdom was CBL’s country of habitual residence immediately before his removal. Since 2013 or 2014, CBL principally resided in London, including the Belgravia apartment that the family occupied for approximately five years. CBL attended a private preparatory school that was an approximately eight-minute walk from their home. In a statement submitted to the Family Court on December 17, 2021, Bafna-Louis described CBL as “happy and settled in an English school ....”⁹ He participated in extra-curricular sports that included soccer and fencing, and, to a lesser extent, cricket.  CBL had a strong interest in drama, but the school did not offer drama as an extra-curricular program, so Bafna-Louis arranged for him to participate in a London-based drama program outside of school. CBL’s personal belongings were kept long term in the United Kingdom. Bafna-Louis testified that approximately 60 boxes of family belongings had been shipped or remained in transit from London to New York. The approximately eight- or nine-year duration of CBL’s time residing in London, his schooling in London, the location of his personal possessions, and his integration into the London-based daily routines of an active and thriving young person all weighed strongly in favor of finding the United Kingdom to be the country of habitual residence at the time of removal. Before 2022, CBL’s international travels all concluded with his return to a home in London. The Court concluded that the RBKC has proven that the United Kingdom was the country of CBL’s habitual residence immediately before removal.

 

      As with CBL, the Court concluded that the United Kingdom was the country of Baby L’s habitual residence at the time of his removal. Based on the foregoing, the Court concluded that Baby L was a habitual resident of the United Kingdom prior to his removal.

 

The Court found that RBKC has proven by a preponderance of the evidence that under section 3(a) of the Convention and the laws of the contracting State, i.e. the United Kingdom, it had rights of custody over CBL at the time of his removal. As to Baby L, the Court concluded that RBKC has demonstrated its custodial rights over Baby L under the Convention and the laws of England and Wales at the time of his removal. The RBKC proved by a preponderance of the evidence that it exercised rights of custody over CBL and Baby L at the time each of them was removed under Convention Article 3(b). Article 3(b) provides that a removal is wrongful where “at the time of removal ... rights [of custody] were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” First, both children were removed in violation of ne exeat orders. Abbott held that the removal of a child in violation of a ne exeat order breaches the inchoate rights of a non-consenting custodian – in this case, the courts of England and Wales. Separately, the implementation of the child protection plan by the City of Westminster and its successor the RBKC were a direct exercise of custodial rights over Baby L and CBL.

 

Article 13 of the Convention states that “[t]he judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” “[U]nder this provision, a court may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child.” Blondin v. Dubois, 238 F.3d 153, 166 (2d Cir. 2001), abrogated on other grounds by Golan, 142 S. Ct. 1880. “[T]he child’s maturity is a question for the district court, to be determined upon the specific facts of each case.” Johnson v. Johnson, 2011 WL 569876, at *7 (S.D.N.Y. Feb. 10, 2011) (Berman, J.). “[T]here is no precise age at which a child will be deemed sufficiently mature under the Convention.” Laguna v. Avila, 2008 WL 1986253, at *9 (E.D.N.Y. May 7, 2008) (Vitaliano, J.).

 

The Court conducted an in camera interview of CBL on February 2, 2023 that lasted approximately two hours and fifteen minutes. Also present were two of CBL’s attorneys and the undersigned’s Law Clerk. Based on CBL’s words and demeanor, the Court found that CBL possessed great maturity and insight for a person of his age, and understood the complexities and nuances of his situation. CBL articulated concrete and well-considered reasons for his desire to remain in New York and not return to the United Kingdom. Accordingly, the Court exercised its discretion to defer to CBL’s views and not order his return to England and Wales. The Court concluded that CBL is of an age and degree of maturity that it was appropriate to defer to his thoughtful views. Pursuant to the discretion afforded under Article 13, the Court declined to order his return to the United Kingdom. The Petition was denied as to CBL.

 

Article 13(b) of the Convention provides that a contracting state “is not bound to order the return of the child” if the respondent proves that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” An Article 13(b) defense must be proved by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A); Golan, 142 S. Ct. at 1889. “Under Article 13(b), a grave risk of harm from repatriation arises in two situations: (1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar, 720 F.3d at 103 Intolerable situations may include “[s]exual abuse of a child,” “[o]ther physical or psychological abuse, serious neglect, and domestic violence in the home ....” Golan, 142 S. Ct. at 1894. “The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” Souratgar, 720 F.3d at 103 (quotation marks and alteration omitted). The “grave risk exception is to be interpreted narrowly, lest it swallow the rule.”

 

For the purpose of adjudicating the Rule 13(b) defense, the Court assumed without deciding that the testimony of Bafna-Louis concerning the actions of Individual-1 and Individual-2 was truthful. Accepting the truth of her testimony, and drawing factual inferences in her favor, Bafna-Louis had not met the very high burden required to demonstrate by clear and convincing evidence that Baby L was at grave risk of physical or psychological harm if returned to the United Kingdom. Bafna-Louis’s testimony principally described harm that she personally suffered as a result of the acts of Individual-1 and Individual-2, but not a grave risk of harm to Baby L. The record did not support a finding that Baby L suffered actual or threatened physical harm at the hands of Individual-1 or Individual-2. Bafna-Louis  had not demonstrated that “the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar, 720 F.3d at 103. On the contrary, the courts of England and Wales have been appropriately attentive to the well-being of Baby L.

 

Accepting Bafna-Louis’s version of events, the actions of Individual-1 and Individual-2 were directed almost exclusively toward Bafna-Louis and not Baby L. “The Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.” Souratgar, 720 F.3d at 103-04. There was no suggestion that either individual has behaved violently toward Baby L or has threatened to do so. Even if Bafna-Louis had made a showing that Baby L was at risk of grave harm, she had not made a showing that the RBKC and the courts of England and Wales may be incapable or unwilling to provide him with adequate protection. Souratgar, 720 F.3d at 103. Bafna-Louisurged that uncertainties around the family’s immigration status in the United Kingdom created an intolerable situation that could result in border authorities denying her entry and leaving Baby L in the exclusive care of social services workers., Bafna-Louis had not demonstrated that her potential separation from Baby L due to their immigration status would itself rise to the severity of an “intolerable situation” under the Hague Convention. See, e.g., In re Koc, 181 F. Supp. 2d 136, 156 (E.D.N.Y. 2001). There was no evidence, however, that the RBKC or the High Court wished to separate Bafna-Louis from the children. Hearing exhibits and Bafna-Louis’s testimony demonstrate that the High Court had attempted to facilitate visas and that Bafna-Louis has engaged in dilatory conduct to frustrate entry to the United Kingdom. Bafna-Louis had not demonstrated a likelihood that, upon submission and processing of adequate immigration papers, she or Baby L would be denied entry to the United Kingdom. She had not demonstrated by clear and convincing evidence that any uncertainty on immigration matters creates an intolerable situation.

 

The Petition was granted as to Baby L. Based on the age and degree of maturity of CBL, the Court exercised the discretion afforded to it under Article 13 of the Hague Convention, defers to CBL’s objections, and declined to order his return. The Petition was denied as to CBL.